Marni Soupcoff: Reviving the court challenges program is the wrong way to address a real problem

Soupcoff’s overall point about the excessive costs of going to court and the more fundamental need to address these is valid.

However,  the complexity of reducing costs and the time required to do so, makes restoration of the court challenges program a sensible interim step (disclosure, I used to have the team that managed the program under my branch at Canadian Heritage and it was small and low-cost):

Only if we address the outlandish costs — in both time and money — of suing government will we actually approach a reality of constitutional litigation being a meaningful check on government power and a meaningful protector of Canadians’ rights. The details of who pays those costs are far easier to sort out.

The fact that challenging a law should not be as painless as, say, buying a sandwich, is worth mentioning. Only, we’ve ended up at such an extreme in the opposite direction, with a typical constitutional challenge quite easily requiring several millions of dollars and a good decade of time, that worries about opening the floodgates seem best left for later, once we’ve made battling for constitutional justice slightly more accessible than walking on the moon.

While it might be true that reducing the price tag of a constitutional case by even $50,000 or so (the amount at which the Court Challenges Program used to max out per matter) would help citizens hold government to account, reducing government delay, document dumping, and excessive procedural manoeuvring during constitutional litigation would be even more productive. Assuming that most Canadians who challenge a law are also federal taxpayers who’d be paying for both a Court Challenges Program and the legions of crown lawyers and other government employees defending the status quo, the plaintiffs would be getting a better deal with a streamlined judicial and litigation process than with a challenges program.

Achieving access to justice is complex, but cutting, rather than adding, bureaucracy is usually a dependably positive step.

Source: Marni Soupcoff: Reviving the court challenges program is the wrong way to address a real problem | National Post